Citation Nr: 9920759
Decision Date: 07/27/99 Archive Date: 08/03/99
DOCKET NO. 98-09 022 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Basic eligibility for Department of Veterans Affairs (VA)
benefits.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Odlum, Associate Counsel
INTRODUCTION
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a January 1998 decision from the Manila,
Philippines, Department of Veterans Affairs (VA) Regional
Office (RO) denying the appellant's application for VA
benefits.
FINDING OF FACT
The United States Army Reserve Personnel Center has certified
that the appellant had no service as a member of the Army of
the United States (AUS), or the Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the
United States Armed Forces.
CONCLUSION OF LAW
The criterion of "veteran" for purposes of entitlement to VA
benefits has not been met as a matter of law; the appellant
is not eligible for VA benefits. 38 U.S.C.A. §§ 101, 107
(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1(d), 3.8, 3.9,
3.203 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
An application for compensation or pension was submitted in
September 1997. In his application, the appellant stated
that he had served in the military from December 1941 to June
1945. He stated that he served in the 83rd Infantry Regiment
in Toledo, Cebu.
In September 1997 the RO submitted a request to the United
States Army Reserve Personnel Center (ARPERCEN) to verify the
service of the appellant. In November 1997 ARPERCEN
responded that that the appellant had no service as a member
of the Philippine Commonwealth Army, including the recognized
guerrillas, in the service of the United States Armed Forces.
In January 1998 the appellant was notified by the RO that his
claim had been denied.
In October 1998 the appellant had a personal hearing before a
hearing officer at the VARO in Manila, Philippines. At the
hearing the appellant reported that he was attached at Camp
Green in Cebu and that his major was Major S. Transcript, p.
1. The appellant testified that he had no proof of military
service other than what he had already submitted. Tr., p. 2.
In January 1999 the RO received an affidavit from C.N.I., who
stated that he had served in the 83rd Infantry Regiment. He
stated that he personally knew of the appellant because they
were in the same unit. He stated that they were inducted in
Toledo, Cebu.
In February 1999, the RO received an affidavit from Z.S., who
also stated that he was a former member of the 83rd Infantry
Regiment. He stated that he personally knew the appellant
because they were in the same unit together.
Criteria
As a threshold matter, one claiming entitlement to VA
benefits must qualify as an appellant by submitting evidence
of service and character of discharge. Aguilar v. Derwinski,
2 Vet. App. 21 (1991); Grottveit v. Brown, 5 Vet. App. 91
(1993). If such evidence is not received, VA will request
verification of service from the service department. 38
C.F.R. § 3.203(c).
One who has not provided evidence of valid military service,
such as the appellant in the instant case, never attains the
status of appellant. Consequently, VA is not obliged to
determine whether there exists a well-grounded claim, nor
obliged to assist him in developing facts pertinent to his
contentions. Aguilar, supra.
The United States will pay compensation to any "veteran"
disabled by disease or injury incurred in or aggravated by
active military service, who was discharged or released under
conditions other than dishonorable from the period of service
in which the disease or injury was incurred, provided the
disability is not the result of the person's own willful
misconduct. 38 U.S.C.A. §§ 1110, 1131 (West 1991).
The law authorizes the payment of pension to a "veteran" of a
war who has the requisite service and who is permanently and
totally disabled from nonservice-connected disability not due
to the veteran's own willful misconduct. 38 U.S.C.A. §§
1502, 1521 (West 1991).
The term "veteran" is defined by law as a person who served
in the active military, naval or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2) (West 1991); 38 C.F.R. §
3.1(d) (1998).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in the line of duty,
and any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. 38 U.S.C.A. §
101(24) (West 1991); 38 C.F.R. § 3.6 (1998).
Service in the Regular Philippine Scouts is included for
pension and compensation benefits. 38 C.F.R. § 3.8(a).
Service as a Philippine Scout in the Regular Army inducted
between October 6, 1945, and June 30, 1947, inclusive, and in
the Commonwealth Army of the Philippines from and after the
dates and hours when called into service of the Armed Forces
of the United States by orders issued from time to time by
the General Officer, U.S. Army, pursuant to the Military
Order of the President of the United States dated July 26,
1941, is included for compensation benefits. Service
department certified recognized guerrilla service and
unrecognized guerrilla service under a recognized
commissioned officer, only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army, prior to July 1, 1946, is
included for compensation benefits. 38 C.F.R. § 3.8(c) and
(d).
The following certifications by the service departments will
be accepted as establishing guerrilla service: (1) recognized
guerrilla service; (2) unrecognized guerrilla service under a
recognized commissioned officer only if the person was a
former member of the United States Armed Forces (including
the Philippine Scouts), or the Commonwealth Army. This
excludes civilians. See 38 C.F.R. §§ 3.8(d)(1), (2) (1998).
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation, or
burial benefits, the VA may accept evidence of service
submitted by an appellant, such as a DD Form 214, Certificate
of Release or Discharge from Active Duty, or original
Certificate of Discharge, without verification from the
appropriate service department if the evidence meets the
following conditions:
(1) the evidence is a document issued by the service
department. A copy of an original document is acceptable if
the copy was issued by the service department or if the copy
was issued by a public custodian of records who certifies
that it is a true and exact copy of the document in the
custodian's custody; and
(2) the document contains needed information as to length,
time, and character of service; and
(3) in the opinion of the VA the document is genuine and the
information contained in it is accurate. 38 C.F.R. §
3.203(a) (1998). However, when the appellant does not submit
evidence of service or the evidence submitted does not meet
the requirements of 38 C.F.R. § 3.203, the VA shall request
verification of service from the service department.
The Court has held that the VA is prohibited from finding, on
any basis other than a service department document, which the
VA believes to be authentic and accurate, or service
department verification that a particular individual served
in the United States Armed Forces. Service department
findings, therefore, are binding on VA for purposes of
establishing service in the United States Armed Forces. Duro
v. Derwinski, 2 Vet. App. 530, 532 (1992).
Analysis
In the instant case, the RO forwarded the service information
provided by the appellant to the appropriate service
department.
In November 1997, the service department responded that the
appellant had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the service of the United States Armed Forces.
The appellant has submitted additional affidavits which
essentially re-state the information he provided in his
application; information which has already been considered by
the service department. They do not indicate any other basis
on which to request a re-verification from the service
department, such as a contention that the appellant was
misidentified in the prior certification or that his name had
been spelled incorrectly.
The service department's determination that the appellant did
not serve as a member of either the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of
the United States Armed Forces, is binding upon the Board.
The additional documents provided by the appellant do not
include any relevant information which was not forwarded to
ARPERCEN for verification. There is no additional evidence
of record which would warrant asking the service department
to verify the alleged service again. Sarmiento v. Brown, 7
Vet. App. 80 (1994). The claim for entitlement to
eligibility for VA benefits based on recognized military
service lacks legal merit and must, therefore, be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
Eligibility for VA benefits is not established and the appeal
is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals